Fulton v. City of Philadelphia

Lawsuit by foster care agency Catholic Social Services against the City of Philadelphia for terminating the agency’s contract because the agency refuses to license same-sex couples to be foster parents.

Court/Assoc.: U.S. District Court, Eastern District of Pennsylvania

Attorneys/Firms: Molly Tack-Hooper and Mary Catherine Roper of the ACLU of Pennsylvania; Leslie Cooper of the ACLU LGBT & HIV Project; Fred Magaziner, Will Sachse, and Catherine Wigglesworth of Dechert LLP; and Frank P. Cervone of the Support Center for Child Advocates

After the city of Philadelphia learned in March 2018 that two of its foster care providers would not license same-sex couples to be foster parents, the city ceased referring children to these agencies. Catholic Social Services (“CSS”) and four of its foster parents, represented by counsel from the Becket Fund for Religious Liberty, sued the City of Philadelphia asking the court to order the city to renew the agency’s contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children.

On June 8, 2018, the ACLU and the ACLU of Pennsylvania filed a motion to intervene in the lawsuit on behalf of the Support Center for Child Advocates, a nonprofit that represents and advocates for children in the foster care system, and Philadelphia Family Pride, a nonprofit membership organization of LGBTQ+ people and their families, whose members include same-sex foster parents and prospective foster parents. The motion to intervene argued that Child Advocates and PFP and the people they serve would be harmed by a ruling in favor of CSS, and asked the court to allow them to participate in the litigation as defendants in order to protect their interests. The district court granted that motion to intervene on August 14, 2018.

On July 13, 2018, a federal district court denied CSS's motion for a preliminary injunction and rejected the argument that child welfare agencies have a right to discriminate.

On July 16, 2018, CSS asked the Third Circuit to enter an emergency injunction granting the relief denied by the district court. The Third Circuit denied that motion on July 27, 2018. On July 31, 2018, CSS asked the Supreme Court of the United States to issue an emergency injunction granting the relief denied by both the district court and court of appeals. On August 30, 2018, the Supreme Court denied their motion.

The district court ruling denying CSS's motion for preliminary injunction is currently on appeal to the Third Circuit. The Third Circuit panel will hear oral argument on November 6, 2018, at 2 pm in the Maris Courtroom in the U.S. Courthouse in Philadelphia.